PHROC's Commentary on the Higher Media Council

The Palestinian Human Rights Organisations Council (PHROC) is dismayed with the executive authority’s decision not to publish the Decision by Law 2015 regarding the Higher Media Council in the public newspaper. The law was ratified on 15 December 2015 by the Council of Ministers and was then issued by the President on 29 December 2015. PHROC affirms that the law remains ineffective until it is published and that it is essential that the President retreats from signing the Decision by Law. PHROC calls for a system that is consistent with international standards and ensures legislative harmony through which legislation concerning media and opinion can be addressed. PHROC also calls on the elimination of the Ministry of Information's role in this regard and the establishment of an independent and active Higher Media Council.

PHROC would like to that this opportunity to present its commentary on the process of the preparation and issuance of the aforementioned Decision by Law as well as its implications:

The draft Decision by Law on the Higher Media Council tackles a basic human right; the right to freedom of expression and opinion, namely freedom of the press. However, it was ratified and issued without prior discussion with civil society. This disregard for civil society, given the absence of a legislative authority, has become an approach and a public policy used by the executive authorities when issuing special legislation. Consequently, transparency and the principle of integration as a basis for good governance are threatened.

PHROC underlines that it was unaware and uninvolved in the preparation and issuance process of the Decision by Law on Higher Media Council. PHROC was not informed about the committee that drafted the Decision by Law nor who it represented. PHROC confirms that substantive and fundamental observations provided by human rights and media institutions on the Higher Media Council draft law of 2011 were completely disregarded and not taken into consideration in the provisions of the Decision by Law of 2015. This form of neglect for civil society and relevant stakeholders is unjustified and unacceptable as it seeks to alienate them from effective participation and partnership, the need for which was discussed during the National Development Plan 2014 – 2016 but has clearly been ignored.

The State of Palestine has acceded, without reservations, to many international covenants and treaties, entailing international obligations to enforce these rights within the State’s legislation, public policies and practices. However, the mentioned Decision by Law violates international standards and provisions of the Palestinian Basic Law relevant to the freedom of opinion and press. According to PHROC’s documentation, there has been a sharp rise in human rights violations, particularly the freedoms of opinion and press, following Palestine's accession. This raises serious questions about the importance and implications of Palestine's accession, and especially the political will, to implement the rights and freedoms guaranteed in the covenants and

PHROC believes that the committee that drafted the Decision by Law on the Higher Media Council did not observe provisions of the following international standards: Article 19 of the International Covenant on Civil and Political Rights (ICCPR); General Comment No 10 on Article 19 of the Human Rights Committee; the annual reports issued by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; as well as the resolutions of the General Assembly and the Human Rights Council in this regard. This reflects negatively on the State’s official report on the ICCPR. PHROC retains its right to highlight these violations in its ICCPR parallel report submitted to the United Nations human rights committee.

The Board of Directors of the Higher Media Council comprises a chairman and 15 members. The Secretariat of the Council is also appointed by the President and the Council of Ministers. Therefore, a tight control over the Higher Media Council is secured by the government and the President. Clearly, the basis for selection lacks any professional, objective and transparent principles. The Decision by Law also included that the Ministry of Awqaf and Religious Affairs a member of the Council, which was not originally approved by the Council of Ministers. In addition, the Decision by Law ignores the role of the Legislative Council. It also ignores requirements of publishing periodic reports on the work and activities of the Council which ensures transparency and informs citizens. Instead the reports are limited to the President and Prime Minister only.

As it proved to be useful and constructive, it might be worth considering the United Nations’ experience in the selection of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, which is based on a competitive process, and apply it to the selection process for the members of the board of directors for the Higher Media Council. From there, the board of directors will administer the rules and procedures for selecting a President, Vice President and a Secretary General, as well as its staff. Keeping in mind, the Decision by Law states that staff members from the Ministry of Information will be transferred to the Higher Media Council "as needed", each retaining his/her title and benefits, and remain subject to the Civil Service Law and the law on retirement in the public sector. If anything, this shows that it is merely a shift in names from the Ministry of Information to the Higher Media Council without any change in substance. Moreover, the budget of the Higher Media Council will be included in the State's general budget which jeopardizes its independence. It is necessary that the activities of the Council are funded by a clear mechanism through media institutions, supervised by UN experiences in facilitating grants and aid to the Council, and are exempted from taxes. This should be done in order to preserve the Council's independence from the executive branch, and to affirm its role in defending the freedom of opinion and press and the promotion of rights and freedoms. By doing so, a competitive, free, pluralist media environment is created.

Some of the objectives of the Higher Media Council as prescribed in the Decision by Law are vague. For example, the provisions on "adhering" to the highest national interest; and "harness the media" for the service of the Palestinian cause; and the "commitment" to national causes; the "optimal use" of the means of communication and concepts related to media institutions and sector, amongst others, are vague. This contradicts international standards, exemplified in the three-part-test to judge the integrity of any term used in the field of freedom of opinion and press at the legislative level. This test is stringent in order to guarantee public freedoms and ensure that all of the terms are consistent with the spirit of the right. Some of the objectives of the Council resemble a guardianship; reinstating laws rather than creating a free pluralistic media environment. In addition, the relationship between the Higher Media Council and State media is unclear. It is important to note that the legislative drafting of the Decision by Law is weak, includes unneeded repetition in the legal texts, and references to unknown laws.

PHROC rejects the "licenses" system incorporated by non-democratic regimes for creating visual and audio-visual media outlets, and calls for an immediate review of the system which is in violation of international standards. Instead, a notification system could be used, as in democratic systems, where official authorities use the constitutional right of establishing media outlets as used on the legislative level according to the Public Meeting Law of 1998. This should be applied especially after Palestine joined the various international covenants. Particularly, Article 19 of the ICCPR; what has been confirmed in the Committee's general comment; and the Special Rapporteur on freedom of opinion and the press. Noting that, the provisions of the Decision by Law grant the Higher Media Council the power to withdraw licenses, through a decision by the board of directors, without any set standards, in violation of Article 27(3) of the Basic Law, which prohibits the control of or halting the work of the press without a judicial order. The Decision by Law also grants the Council of Ministers the power to issue a special license system. The draft resolution of 2011 concerning audio-visual media includes temporary licenses that would be renewed after fulfilling the conditions and procedures of the Higher Media Council. In a nutshell, the status of media and press institutions remains threatened by either renewing or withdrawing the license which is controlled by the Council without any criteria.

PHROC affirms its rejection of the license procedure used in non-democratic systems. Such a procedure requires prior approval by the security services to in violation of the Basic Law and international standards as well as the Council of Ministers' decision 133 of 24 April 2012 during which it called to abolish such approval. This Council of Minister decision has yet to be implemented. In light of this, PHROC condemns and rejects this securityas it jeopardizes the rights and freedoms and moves us into a police-state. PHROC calls on the executive authorities to issue an explicit statement to permanently suspend this requirement as it amounts to a constitutional crime as per Article 32 of the Basic Law - with compensations to those who have already suffered damage.

The committee that drafted the Decision by Law intended to drop judicial protection underscored in the Basic Law for media - which cannot be limited, voided, cancelled or restrained unless through judicial order - by replacing "in accordance with the law and under a court ruling" as prescribed in Article 27(3) of the Basic Law with "under the provisions of law or by a court ruling" as per Article 2 of the Decision by Law. Such amendment violates principles of the rule of law and the Basic Law. Article 27 of the Basic Law will continue to be a protector of the constitutional framework for all media that cannot be breached by regular or exceptional

Finally, PHROC is willing to embark on an advocacy campaign through various means in order to counter the systematic ignorance in the legislation and policies relating to freedoms of opinion and media whether on the Higher Media Council or the regulation of the audio-visual and electronic media and the right to information. PHROC is also prepared to counter the continuous violations against journalists and activists and media outlets through different means, whether within the framework of human rights law or international humanitarian law, while maintaining a judicial option to challenge any legislation that affect the Basic Law. PHROC insists that the role of the Ministry of Information must be eliminated and there must be a shift to the Higher Media Council, in accordance with international standards. PHROC renews its call on the executive authority for an immediate cease of its deliberate disregard for existing legislation and public policies. PHROC urges the government and President of Palestine to take formal action to reverse the signing of the Decision by Law on the Higher Media Council, which was not published or reviewed by the civil society, to ensure its compliance with international standards. This should be done in order to achieve the set goals of defending freedom of opinion and media, as well as the promotion of rights and freedoms, and the creation of a pluralistic and competitive Palestinian media.